Articles Tagged with judgment

iStock-545456068-300x184A court may proceed with a Texas divorce case even if a party does not appear for the trial. In some cases, a party who fails to respond to divorce papers or appear at trial may be entitled to a new trial, but they must meet certain requirements.  In a recent case, a husband appealed the denial of a new trial and challenged the property division in a default divorce.

According to the appeals court’s opinion, the parties lived in the husband’s home in Texas after their marriage in Nigeria.  The husband bought a home in New Hampshire and moved there in 2017.  The wife petitioned for divorce in 2018.

The trial court issued a temporary restraining order prohibiting the husband from interfering with the wife’s health insurance, but he informed the insurer they were divorced while the divorce was pending. The wife’s coverage was cancelled.  The wife had to pay $7,500 for medical expenses that the insurer had approved before cancellation. The trial court also prohibited the husband from terminating utility services, but the wife alleged he had them disconnected repeatedly.

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imagesFailing to respond to a Texas divorce petition can result in a default judgment with an unfavorable property division.  What happens, though, if the spouse who received the default judgment fails to take action to enforce the property division for several years?  A Texas appeals court recently considered a case involving that issue.

Wife Obtains Default Judgment

The husband bought a home before he met the wife.  They refinanced it jointly twice during the marriage. The wife subsequently filed for divorce and obtained a default divorce decree in February 2011. The decree listed the home as community property and stated that the wife owned it alone as separate property and that the court divested “any interest, title, and claim the Husband may have to [it].” The court further ordered the husband to sign any deeds necessary to transfer the property to her.  There was a remaining principal of $43,399.14 according to the bank statement for the next month.

The husband testified he had not been served and only found out about the divorce case and default divorce later that year. The wife moved out about four months after the divorce. She stated the husband did not want her to live there and tried to “kick [her] out in a very aggressive way. . .” She claimed “[t]here was a lot of violence. . .”  The husband testified the wife would yell at him that the house was hers and she was going to take it from him. He then went to court to see the divorce decree and learned it awarded the house to the wife.  He said he could not afford an attorney at the time.

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Sometimes, people served with divorce papers do not respond.  They may be unsure what to do or they may not want to face the realities of divorce.  Failing to respond will not prevent the divorce, however. If a respondent fails to file an answer to a Texas divorce petition, the court may still grant the divorce through a default judgment.  Although the petitioner must submit evidence supporting their material allegations and the property division must still be just and right, the divorce may be granted on terms that are unfavorable to the respondent.

A husband recently appealed a default judgment that granted a divorce on the ground of adultery. The parties married in 2008 and had two children together. They entered into a post-marital agreement in 2018.  Under that agreement, if the wife filed for divorce because of the husband’s adultery, she would get conservatorship of the children without a geographical restriction, spousal maintenance, and certain property in which the husband held a separate property interest. The wife petitioned for divorce the next year and alleged adultery.  The husband did not file an answer.

Default Judgment is Entered

The wife submitted an affidavit to prove up the divorce that incorporated the post-marital agreement by reference.  She asked the court to approve the post-marital agreement as the agreement of the parties. The trial court granted the divorce on the ground of adultery. The husband appealed.

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BSgavelx1200-768x432-1The trial court in a Texas family law case has only a limited ability to change its judgment once its plenary power expires.  Generally, plenary power lasts for thirty days from the date the final judgment is signed, but it may be extended if the court overrules certain motions or modifies the judgment while it still has plenary power.

In a recent case, a mother challenged the court’s authority to reform the judgment.  According to the appeals court’s opinion, she had petitioned for the adjudication of the parentage of her child.  Both the mother and the alleged father sought an order adjudicating him to be the child’s father.

The parties reached a partial agreement and went to trial on the remaining issues.

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